Kane's Adm'r v. Garfield , 60 Vt. 79 ( 1887 )

The opinion of tbe court was delivered by

Royce, Ch. J.

This was an action of trespass quare clausum and trover, and was heard on the report of a referee.

The town of Newark was laid out into seventy-eight lots ; sixty-five were allotted to individual proprietors, and eight were unappropriated and were owned in common by the proprietors. The plaintiff’s intestate owned five and one-half of the lots that were allotted to the proprietors. The trespasses complained of were committed upon some portion of the unappropriated land.

It is not now claimed that the defendants acquired any title by virtue of the deed from the Mowreys and Cahoon, executed April 8, 1850 ; but they base their right upon the vendue deed executed by Hiram Moulton, as collector of the tax voted by the legislature of the State at its session in the year 1856 to Andrew P. Taft, Taft having by his deed conveyed the land so conveyed to him by Moulton to the defendant Frank Garfield, March 1, 1883.

The legislature, at its session in 1856, assessed a tax of five cents an acre on all the lands in Newark except public lands, for the purpose of repairing roads and building bridges, and appointed Henry Dolloff, Robert Moulton and Lauren M. Sleeper a committee to expend said tax, and Hiram Moulton collector. A tax of $14.95 was assessed on lot No. 20, drawn’ to the original right of Jabez Gorham, and a tax was assessed upon thirty-three acres of the undivided land, as incident to the ownership of lot No. 20. Twenty-one acres of said thirty-three were redeemed, and the tax on the remaining twelve not being paid, said Moulton sold the same at vendue to Andrew P. Taft for $1.29, and executed a collector’s deed of the same to him April 6, 1859.

In Spear v. Ditty, 9 Vt. 282, it was said that sales of land for taxes are proceedings in invitum; that it is a mode of transferring title by operation of law, without the agency of the owner, and that the proceedings are¡ as conditions precedent, to be strictly, perhaps literally, followed. In Chandler v. Spear, 22 Vt. 388, that when the statute under which such a sale, is made directs a thing to be done, or prescribes the form, time or manner of doing anything, such thing must be done in the time, form and manner prescribed, or the sale will be invalid. But in determining what is required to be. done, the statute must receive a reasonable construction ; and where no particular form or manner of doing a thing is pointed out, any mode which effects the object with reasonable certainty is sufficient. And in judging of these matters the court is to be governed by such reasonable rules of construction as' direct them in other cases.

These rules have ever since been cited with approval by this court in cases where the validity of such sales has been in question, and are to be observed in the consideration of the objections which have been made to the title of the defendant.

The first objection to the validity of said sale is based -upon the requirements of section 1 of chapter 90 of the Compiled Laws, under which the sale was made. That section provides that no lands liable to the payment of taxes shall' be exposed to sale for the payment of such taxes, until a fair and correct account- of the labor of- the committee appointed to expend the same shall have been made out by the committee and presented to the judges of the County Court in the county in which the land is situated, and has been approved by them; and the clerk of'the County Court is required to record said accounts. It is claimed that the report of what was done by the committee in this case was not a compliance with the requirements of said section. It appears that such an account was made out and sworn to by the committee, and was filed by the clerk on the first day of a regular teim of Caledonia County Court, and was presented to the judges of said court at a term of said court holden on the first Tuesday of December, 1857 ; and that said judges, after a full examination of said account, approved and allowed tbe same at the sum of $1,077.61. A full report of the doings of said judges was made out and signed by them, and that, with the report of the committee was entered by the clerk of said court in the book in_ which the records of the current judgments were made, and was duly attested by said clerk as a true record.

It is claimed that said judges had no right to approve of and allow the account presented to them, for the reason that it was not. verified in the manner prescribed by section 3 of said chapter 90. That section provides that no articles of account shall .be allowed by the judges unless they shall be satisfied by the oath of one or more of the committee that the labor was faithfully done and performed, agreeably to the account which they exhibit. It appears here that the account of this committee was. sworn to before its presentation to the judges. No form of oath is prescribed, and the presumption is that they took such an oath as was required by the law under which they were acting. It further appears by the report made by the judges, that they found by the oaths of the committee that, they had faithfully expended said tax, as in said account specified, according to law; so that, in our judgment, the account was properly verified.

Section 2 of said chapter requires that all such committees shall leave a certified copy of their accounts, with all the items in detail, with the clerk of the court, to which their accounts shall be presented for allowance, on or before the first day of the term, which accounts shall remain on file in said clerk’s office. The obvious intention of that requirement was as a notice to all interested of the nature and kind of account that was to be presented for allowance. That purpose was fully answered by the filing of the original account at the time required, and it having been filed, the presumption is that it remained on file; so the failure to file a certified copy would not invalidate the proceedings.

Section 2 of said chapter requires that the committee should give notice of their intention to present their account for allowance by posting up notices of their intention at least twelve days before the sitting of the court at which the same was to be presented. The paper found among the papers of Henry Dolloif relating to this land tax sale, and which is copied into the report, had a tendency to show that such notices were posted, if admissible. It must be treated as having been put in without objection. At the hearing, defendant’s counsel asked the plaintiif’s counsel to point out all the objections they should urge before the court, and no specific objection was made to that piece of evidence. Under such circumstances the general objection made to all the evidence relating to the land tax sale would not be available. The judges, in the report made by them, say that it appeared from evidence before them that the notices required by law had been given by the committee. The duty of ascertaining whether proper notices had been given was imposed upon the judges by£the law, and the finding that they had been given was a condition precedent to their right to examine and approve the account, and allow the same, and their finding must be regarded as conclusive.

By section 4 the committee were required to notify the land owners in the manner therein stated that they might work out their respective taxes by applying to the committee. The facts found by the referee show that such notice was given as was required by said section.

The bond which the collector, by section 9, was required to give, was in a sum not less than double the amount of the tax that he was appointed to collect. The amount of the tax was $1,066., and the bond given was for $2,150. — an amount more than double the amount of the tax. The amount for which the bond was to be given was to be ascertained from the tax, and not from the account that might be allowed by the judges of the County Court, and was sufficient. Spear v. Ditty, 8 Vt. 419.

The remaining objection was to the proceedings of the collector, as defined by the act. His warrant, return of proceedings, list of unredeemed lands and certificate of the oath taken by him, were all seasonably recorded; and we do not find any such defect in his proceedings as would invalidate the sale. Jabez Gorham was an original proprietor of the town, and the twelve acres sold by the collector belonged to his proprietary right, and the sale being a regular one, Taft acquired a valid title under it. The unappropriated land had not been divided, and so Taft by his purchase became a tenant in common with the plaintiff’s intestate.

The defendant Russell C. was an employee of the defendant Frank, and what cutting of timber on said land was done prior to the execution of the deed from Taft to Frank, was done by the consent of Taft. The parties being tenants in common of the land, the plaintiff cannot maintain the action of trespass or trover against the defendants for entering upon the land and doing what it was found was done by them.

The judgment is reversed, and judgment rendered for the defendants.